The applicability of the Battered Woman Syndrome (BWS) model to gay males and lesbian women who kill their intimate batterers in self-defence

Abstract

The defence of self-defence, like much of the common law, has strongly male-centric origins and emphases. Judges and juries have little difficulty understanding the theory of the case presented to them by defence counsel when self-defence is argued to have been necessary as a result of an attack by a stranger or after a bar brawl. It is argued that what is conceptually more difficult for jurors is the application of the defence of self-defence in circumstances where an alleged perpetrator of an assault or homicide does so in circumstances of intimate partner violence, and that this is particularly exacerbated in circumstances where the victim and the alleged offender are of the same gender. The last two decades have witnessed a great deal of advocacy and law reform inquiry addressed towards improving the response of the criminal justice system to killings committed by battered individuals who kill their intimate partners. Most of the developments in the area have focused on the heterosexual female victim of spousal or partner abuse, the so-called 'battered woman'. Since 1991, in an attempt to alleviate the difficulties that the gender-biased defence of self-defence poses to battered women, expert evidence in Battered Woman Syndrome ('BWS')-a model of intimate violence developed during the 1970s to explain the experience and conduct of female victims of abusive heterosexual relationships-has been admissible during trials in Australia of battered heterosexual women for the killing of their intimate batterers. With the increasing utilisation of expert evidence in BWS, judges and jurors are becoming more exposed to arguably legal justifications for violent behaviour that would otherwise be considered irrational and criminal conduct. However, the gendered focus of BWS results in significant barriers for battered gay and lesbian individuals who kill their intimate partners in self-defence. Simply, the conceptualisation of intimate partner violence, as proposed by BWS, is heterosexist. Accordingly, the combination of the law of self-defence and BWS does not adequately take into account the exclusive particularities and unique dynamics of same-sex intimate violence. It is argued that the responses of alleged perpetrators in killing their same-sex partners may be the only reasonable response. This thesis argues that the current law of self-defence in New South Wales, at common law and under statute, is inadequate for gay and lesbian defendants who have been in violent intimate partner relationships. Although legislative amendments in New South Wales have offered the potential for better understanding self-defence used by battered individuals generally, the lack of knowledge that jurors may have regarding intimate violence in same-sex relationships, coupled with the homophobic and heterosexist attitudes held by many, may preclude these alleged offenders from using the defence of self-defence successfully. This thesis suggests that in order to provide a more just trial for these alleged offenders one of two options must be undertaken. First, instead of requiring defendants to rely on the inappropriate BWS, to allow the use of a gender-neutral theory of intimate violence. Second, to modify the law of self-defence so that it better reflects the circumstances of all victims of intimate partner violence who kill their batterers.

Date of Award	2012
Original language	English